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2003 DIGILAW 456 (MP)

Mangal v. State of M. P.

2003-03-26

A.K.AWASTHY, S.K.KULSHRESTHA

body2003
JUDGMENT Kulshrestha, J. -- 1. The appellant has preferred this appeal against the judgment dated 1.3.1990 of the learned Additional Sessions Judge, Mandla in Sessions Trial No. 22/1989 by which the appellant has been convicted under section 302 of the IPC and sentenced to imprisonment for life. 2. The appellant was tried for the sail offence as also for offence under section 302 read with section 34 of the IPC for having committed murder of Sukhlal in 'Khermai Mandir' at Talab Tola alon with acquitted accused Bholagiri. The prosecution story, in brief, was that co-accused Bholagiri used to live in the said temple and was a Sadhu and both accused used to consume liquor and eat meat. They had purchased a chicken on credit from the deceased Sukhlal for which the deceased had demanded the money The accused and the acquitted co-accused had then assaulted the deceased with stick and caused his death. This incident was witnessed by Shiv Kumar (PW 7) from short distance who rushed to the village and informed PW 3 Abdul Salim. Abdu Salim, in turn, informed PW 6 Pusiya Bai mother of deceased. She collected others and they all went to the temple where they witnessed the deceased lying on the chabutra. The report of the incident was lodged by Dhannu on the same day at 4.30 p.m. at police station Nainpur which was recorded by PW 8 R.M. Tiwari, Police Sub-Inspector. He recorded the marg intimation Ex. P-12 and prepared inquest vide Ex. P-l and forwarded the dead body for post-mortem examination. He took samples of plain earth and blood-stained earth vide Ex. P-2 and seized articles lying on the spot vide panchnama Ex. P-3. He interrogated the accused Mangal Singh and prepared memo Ex. P-8 under section 27 of the Evidence Act and pursuant to the information furnished by Mangal Singh he recoverded a Danda (stick) at his instance and seized it vide memo Ex. P-4. He also seized the shirt of Mangal Singh vide Ex. P-5. Certain seizures were also made from the co-accused. 3. Dr. D.P. Sasodiya (PW 9) examinee the dead body of Sukhlal and found the following external injuries on his body: 1. L.W. on right side of face at molar prominence. 2. Scalp wounds two in number placed 1 " apart transversely -- (i) Upper wound 4" xl" x bone deep bone; fractured. 3. Dr. D.P. Sasodiya (PW 9) examinee the dead body of Sukhlal and found the following external injuries on his body: 1. L.W. on right side of face at molar prominence. 2. Scalp wounds two in number placed 1 " apart transversely -- (i) Upper wound 4" xl" x bone deep bone; fractured. (ii) Lower wound 3" xl" x bone deep bone; fractured. (3) Thoracic injury -- fracture with hecatomb in surrounding of right 9th 10th & 11th ribs. 4. According to the opinion of the doctor, the cause of death was syncope due to excessive blood loss from the external and internal wounds: 5. After recording the- statements of witnesses and further investigation, the accused was prosecuted. 6. The accused pleaded not guilty to the charge and stated that he had been falsely implicated. He examined Govardhan (DW 1) in his defence. The trial Court, however found him guilty and convicted and sentenced him as stated hereinabove. 7. Learned counsel for the appellant has submitted that entire story of the prosecution devolves around the testimony of the sole eye witness PW 7 Shiv Kumar which is absolutely unreliable as he was himself in the initial stage of investigation suspected by the police of being involved in the commission of the offence. Learned counsel has further submitted that Shiv Kumar, having been disbelieved by the trial Court in respect of the co-accused against whom also he had made the allegation in the same breath ought not to have been believed in the case of the appellant. 8. It is true that the evidence of the prosecution mainly rests on the testimony of Shvi Kumar who is the sole eye witness in the case. Shiv Kumar is a boy aged 14 years. Shiv Kumar in his statement ha deposed that on the date of the incident a about 3 O' clock, while he was grazing his cow, he saw the accused and Baba assaulting Sukhlal outside the temple with sticks. He informed Salim about the incident. Salim has been examined as PW 3, Salim does not say that Shiv Kumar informed him that the accused assaulted the deceased though he has stated that he had informed him about a quarrel having taken place. He informed Salim about the incident. Salim has been examined as PW 3, Salim does not say that Shiv Kumar informed him that the accused assaulted the deceased though he has stated that he had informed him about a quarrel having taken place. While it is true that PW 2 Mimmabai, mother of PW 7 Shiv Kumar and PW 5 Zhammulal have stated that Shiv Kumar had told them that accused and the co-accused had assaulted the deceased, in the absence of the statement from PW 7 that he had informed PW 2 Mimmabai and PW 5 Zhammulal, their evidence loses significance. What is significant is that though Shiv Kumar says that he had informed Salim that he had seen Mangal assaulting the deceased, Salim does no say that he had been so informed by Shiv Kumar. 9. It has also come in evidence of PW 6 Pusiya Bai, mother of the deceased, that Shiv Kumar and Salim had also beer detained by the police in connection with the murder of the deceased on allegation that they were involved in it. If this evidence is considered in the context of the evidence of PW 7 Shiv Kumar in paragraph 6 that police had asked him that he will have to give evidence, it appears that it was under some pressure that Shiv Kumar had given statement implicating the accused. In any case, Shiv Kumar has not been believed insofar as he has made statement implicating the co-accused and therefore, implicit faith cannot be reposed in his testimony and it would be unsafe to sustain conviction on the basis of his testimony without corroboration from other sources. The only other evidence against the accused is the recovery of danda (stick) pursuant to memo Ex. P-8 under section 27 of the Evidence Act Learned counsel has submitted that the memo Ex. P-8 does not bear the signatures of the appellant and has in this connection invited our attention to the decision of the Supreme Court in Jackaran Singh v. State of Punjab [ AIR 1995 SC 2345 ] that such absence renders such statement unreliable. Even otherwise, the seizure of danda vide memo Ex. P-4 has not been connected with the commission of the offence. Thus, there is no' corroborating evidence to lend assurance to the statement of PW 7 Shiv Kumar. Even otherwise, the seizure of danda vide memo Ex. P-4 has not been connected with the commission of the offence. Thus, there is no' corroborating evidence to lend assurance to the statement of PW 7 Shiv Kumar. We are, therefore, not inclined to sustain the conviction of the appellant on the basis of the sole testimony of Shiv Kumar. In our considered, view, the accused deserves the benefit of doubt. 10. Accordingly, this appeal is allowed. The conviction of the appellant and the sentence passed against him are set aside. The appellant is acquitted of the charge against him and set at liberty. He shall be set free if not required in connection with any other matter.